ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CERTIFYING THE CLASS FOR SETTLEMENT PURPOSES, APPROVING FORM AND MANNER OF NOTICE, AND SETTING DATE FOR FINAL FAIRNESS HEARING
TIMOTHY D. DEGIUSTI, District Judge.
Before the Court is Plaintiff's Motion to Certify the Settlement Class for Settlement Purposes, Preliminarily Approve Class Action Settlement, Approve Form and Manner of Notice and Set Date for Approval Hearing ("Motion for Preliminary Approval") [Doc. No. 38]. This is a class action lawsuit brought by Plaintiff, Chieftain Royalty Company ("Plaintiff"), on behalf of itself and as representative of a Class of royalty owners (defined below), against Laredo Petroleum, Inc. ("Laredo")
After reviewing the pleadings and Plaintiff's Motion for Preliminary Approval and Memorandum of Law in Support thereof, the Court has preliminarily considered the Settlement to determine, among other things, whether the Settlement warrants the issuance of notice to the Class. Upon reviewing the Settlement under the terms of the Settlement Agreement and the Motion for Preliminary Approval, it is hereby
1. For purposes of this Order, the Court adopts all defined terms as set forth in the Settlement Agreement unless otherwise defined herein. ." Settlement, as the Class meets all certification requirements of Federal Rule of Civil Procedure 23 for a settlement class. The Class is certified for settlement purposes only. Because this case has been settled at this stage of the proceedings, the Court does not reach, and makes no ruling either way, as to the issue of whether the Class certified by agreement for settlement purposes could have been certified in this case for litigation purposes.
The certified Class is defined as follows:
3. The Court finds the above-defined Class satisfies all prerequisites of Federal Rule of Civil Procedure 23(a) for purposes of the proposed class settlement as set forth herein and for the reasons identified in Plaintiff's Motion for Preliminary Approval:
The Tenth Circuit has not adopted a set number as presumptively sufficient to meet this burden, and there is "no set formula to determine if the class is so numerous that it should be so certified."
In addition, because the Court finds Plaintiff, Chieftain Royalty Company, and Plaintiff's Counsel (Nix, Patterson & Roach, LLP and Barnes & Lewis, LLP) to be adequate representatives of the Class, the Court hereby appoints Plaintiff as Class Representative and Plaintiff's Counsel as Class Counsel.
4. The Court also finds the requirements of Federal Rule of Civil Procedure 23(b)(3) are met as set forth herein and for the reasons identified in Plaintiff's Motion for Preliminary Approval:
5. The Court preliminarily finds (i) the proposed Settlement resulted from extensive arm's-length negotiations; (ii) the proposed Settlement was agreed to only after Class Counsel had conducted legal research and discovery regarding the strengths and weakness of Class Representative and the Class' claims; (iii) Class Representative and Class Counsel have concluded that the proposed Settlement is fair, reasonable, and adequate; and (iv) the proposed Settlement is sufficiently fair, reasonable, and adequate to warrant sending notice of the proposed Settlement to the Class.
6. Having considered the essential terms of the Settlement under the recognized standards for preliminary approval as set forth in the relevant jurisprudence, the Court preliminarily approves the Settlement, subject to the right of any member of the Class to challenge the fairness, reasonableness, and adequacy of the Settlement, Settlement Agreement, or proposed Plan of Allocation, and to show cause, if any exists, why a Final Judgment dismissing the Action based on the Settlement Agreement should not be ordered after adequate notice to the Class has been given in conformity with this Order. As such, the Court finds that those Class Members whose claims would be settled, compromised, dismissed, and/or released pursuant to the Settlement should be given notice and an opportunity to be heard regarding final approval of the Settlement and other matters.
7. The Court further preliminarily approves the form and content of the proposed Notice and the proposed Summary Notice, which are attached to the Settlement Agreement as Exhibits 4 and 5, respectively, and finds the Notice and Summary Notice are the best notice practicable under the circumstances, constitute due and sufficient notice to all persons and entities entitled to receive such notice, and fully satisfy the requirements of applicable laws, including due process and Federal Rule of Civil Procedure 23. The Court finds the form and content of the Notice and Summary Notice fairly and adequately: (i) describe the terms and effect of the Settlement; (ii) notify the Class that Class Counsel will seek attorneys' fees, reimbursement of Litigation Expenses, and a Case Contribution Award for Class Representative's services; (iii) notify the Class of the time and place of the Final Fairness Hearing; (iv) describe the procedure for requesting exclusion from the Settlement; and (v) describe the procedure for objecting to the Settlement or any part thereof.
8. The Court also preliminarily approves the proposed manner of communicating the Notice and Summary Notice to the Class, as set out below, and finds that it is the best notice practicable under the circumstances, constitutes due and sufficient notice to all persons and entities entitled to receive such notice, and fully satisfies the requirements of applicable laws, including due process and Federal Rule of Civil Procedure 23:
9. Class Counsel is authorized to act on behalf of the Class with respect to all acts required by, or which may be given pursuant to, the Settlement Agreement, or such other acts that are reasonably necessary to consummate the proposed Settlement set forth in the Settlement Agreement.
10. The Court appoints Rust Consulting, Inc., as Settlement Administrator to receive and process any Requests for Exclusion or inquiries submitted by Class Members and such other matters as the Settling Parties may call upon the Settlement Administrator rather than other personnel to perform in connection with the proposed settlement and, if the Settlement is finally approved by the Court, to supervise and administer the Settlement in accordance with the Settlement Agreement and the Court's Plan of Allocation Order(s) authorizing distribution of the Net Settlement Fund to Class Members. The Settling Parties and their counsel shall not be liable for any act or omission of the Settlement Administrator.
11. The Court appoints Wells Fargo, N.A., as the Escrow Agent. The Escrow Agent is authorized and directed to act in accordance with the Escrow Agreement to be entered into by the Settling Parties. The Settling Parties and their counsel shall not be liable for any act or omission of the Escrow Agent or investment loss for the funds placed in Escrow.
12. Pursuant to Federal Rule of Civil Procedure 23(e), a Final Fairness Hearing shall be held on April 30, 2015 at 1:30 p.M. in the United States District Court for the Western District of Oklahoma, the Honorable Timothy D. DeGiusti presiding, to:
13. The Court reserves the right to adjourn, continue, and reconvene the Final Fairness Hearing, or any aspect thereof, including the consideration for the application of attorneys' fees and reimbursement of Litigation Expenses, without further notice to the Class.
14. The Court reserves the right to continue the Final Fairness Hearing to a later date than the date provided for in the formal notices to the Class, and to approve the Settlement at or after the Final Fairness Hearing without further notice to the Settlement Class.
15. Class Members wishing to exclude themselves from the Settlement Class pursuant to Federal Rule of Civil Procedure 23(e)(4) must submit to the Settlement Administrator a valid and timely Request for Exclusion. Requests for Exclusion must include: (i) the Class Member's name, address, telephone number, and notarized signature; (ii) a statement that the Class Member wishes to be excluded from the Class in Chieftain Royalty Company v. Laredo Petroleum, Inc., Case No. CIV-12-1319-D; and (iii) a description of the Class Member's interest in any Class Well(s), including the name, Laredo and/or the Settling Parties' well number, and legal location of such Class Well(s). Requests for Exclusion must be mailed to and received into the hands of the Settlement Administrator no later than 5 p.m. CDT on April 9, 2015 at:
Requests for Exclusion may not be submitted through the website or by phone, facsimile, or email. Any Class Member that has not timely and properly requested exclusion from the Class shall be included in the Settlement and shall be bound by the terms of the Settlement Agreement in the event it is finally approved by the Court.
16. Copies of all Requests for Exclusion, including supporting documentation submitted therewith, if any, that are submitted to and received by the Settlement Administrator shall be delivered to Class Counsel and Laredo and Settling Parties' Counsel within one (1) business day of receipt.
17. Any Class Member who wishes to object to the fairness, reasonableness, or adequacy of the Settlement, any term of the Settlement, the Plan of Allocation, the proposed request for attorneys' fees and Litigation Expenses, or the proposed request for a Case Contribution Award to Class Representative may file an objection. An objector must file with the Court and serve upon Class Counsel and Laredo and Settling Parties' Counsel a written objection containing the following: (i) a heading referring to Chieftain Royalty Company v. Laredo Petroleum, Inc., Case No. CIV-12-1319-D, and to the United States District Court for the Western District of Oklahoma; (ii) a statement as to whether the objector intends to appear at the Final Fairness Hearing, either in person or through counsel, and, if through counsel, counsel must be identified by name, address and telephone number; (iii) a detailed statement of the specific legal and factual basis for each and every objection; (iv) a list of any witnesses the objector may call at the Final Fairness Hearing, together with a brief summary of each witness's expected testimony; (v) a list of and copies of any exhibits the objector may use at the Final Fairness Hearing; (vi) a list of any legal authority the objector may present at the Final Fairness Hearing; (vii) the objector's current address, telephone number, and signature executed before a Notary Public; and (viii) identification of the objector's interest in Class Wells by identifying each such Class Well by well name, Laredo or Settling Parties' well number, and legal location. Such written objections must be filed with and received by the Court and served into the hands of Class Counsel and Laredo and Settling Parties' Counsel no later 5 p.m. CDT on April 9, 2015 at:
Any Class Member who does not timely file and serve a written objection shall be foreclosed from raising any such objection to the Settlement, and any untimely objection shall be barred absent an Order from the Court. Class Counsel and/or Laredo and the Settling Parties' Counsel may file any reply or response to any objections no later than 5:00 p.m. CDT on April 23, 2015. The procedures set forth in this paragraph do not supplant, but are in addition to, any procedures required by the Federal Rules of Civil Procedure.
18. Any objector who timely files and serves a valid written objection in accordance with the above paragraph may also appear at the Final Fairness Hearing, either in person or through qualified counsel retained at the objector's expense. Objectors or their attorneys intending to present any objection at the Final Fairness Hearing must comply with the Local Rules of this Court and must include, along with their written objection described in the above paragraph, a Notice of Intention to Appear at Final Fairness Hearing, which, in accordance with the Settlement Agreement and Notice, shall affirmatively state such intention to appear and present and shall include the Class Member's name, address, telephone number, and signature.
19. Class Counsel and Laredo and the Settling Parties' Counsel shall promptly furnish each other with copies of any and all objections that come into their possession.
20. No later than 5:00 p.m. CDT on March 26, 2015, Class Representative and Class Counsel shall file any requests for approval of attorneys' fees, reimbursement of Litigation Expenses, and a Case Contribution Award. Any objections to Class Representative's and Class Counsel's requests for approval of attorneys' fees, reimbursement of Litigation Expenses, and a Case Contribution Award shall be filed no later than 5:00 p.m. CDT on April 9, 2015 as more fully set forth in paragraph 17, above.
21. If the Settlement is not approved by the Court, is terminated in accordance with the terms of the Settlement Agreement, or otherwise does not become Final and Non-Appealable for any reason whatsoever, the Settlement, Settlement Agreement, and any actions taken or to be taken in connection therewith (including this Order and any Judgment entered herein), shall be terminated and become void and of no further force and effect, except that any obligations or provisions relating to the reimbursement of attorney's fees and other costs, the payment of costs and expenses incurred in connection with notice and administration, and any other obligation or provision that is expressly designated in the Settlement Agreement to survive termination of the Settlement, shall survive termination of the Settlement Agreement and Settlement.
22. All proceedings in the Litigation, other than such proceedings as may be necessary to carry out the terms and conditions of the Settlement, are hereby stayed and suspended until further order of this Court. Pending final approval of the Settlement, Class Representative and all Class Members are barred, enjoined, and restrained from commencing, prosecuting, continuing, or asserting in any forum, either directly or indirectly, on their own behalf or on the behalf of any other person or class, any Released Claim against Laredo or the Settling Parties.
23. The Settlement Agreement, whether or not consummated, the negotiations thereof, and any related communications made, proceedings taken, or orders entered pursuant thereto, are not admissible as evidence for any purpose against Class Representative, the Class, Laredo or the Settling Parties in any pending or future litigation involving the parties. This Order shall not be construed or used as an admission, concession, or declaration by or against Laredo or the Settling Parties of any fault, wrongdoing, breach, or liability, and Laredo and the Settling Parties specifically deny any such fault, wrongdoing, breach, or liability. This Order shall not be construed or used as an admission, concession, or declaration by or against Class Representative or the Class that their claims lack merit or that the relief requested in the Litigation is inappropriate, improper, or unavailable. This Order shall not be construed or used as an admission, concession, declaration, or waiver by any party of any arguments, defenses, or claims he, she, or it may have in the event the Settlement is terminated. Moreover, the Settlement and any proceedings taken pursuant to the Settlement are for settlement purposes only. Neither the fact of, nor any provision contained in the Settlement Agreement or its exhibits, nor any actions taken thereunder shall be construed as, offered into evidence as, received into evidence as, or deemed to be evidence of a presumption, concession, or admission of any kind as to the truth of any fact alleged or validity of any defense that has been, could have been, or in the future might be asserted.
24. The Court hereby retains jurisdiction over this Litigation to consider all further matters arising out of or connected with the Settlement reflected in the Settlement Agreement, including enforcement of the releases provided for in the Settlement Agreement. The Court also hereby retains jurisdiction over this Litigation to administer all other matters related to the enforcement of the Settlement Agreement and Settlement and the orders of the Court related thereto.
25. The Court may, for good cause shown, extend any of the deadlines set forth in this Order without further written notice.
IT IS SO ORDERED.